Bonum Certa Men Certa

Instead of Smearing the Judges of the Patent Trial and Appeal Board (PTAB) Check Why Abstract Patents Are Being Granted in the First Place

Hours ago: Do Know Evil? Then Stop Patenting Software, Google

Judges as moral reasoners - Oxford Journals - Oxford University Press
Full paper: Judges as moral reasoners - Oxford Journals - Oxford University Press [PDF]



Summary: PTAB is taking a lot of heat (albeit always from patent maximalists) for simply applying the law, which ought to have been applied by the Office at the time of examination; confidence in US patents depends on the Office's ability to discern/distinguish patentable subject matter from clearly unpatentable subject matter

The Patent Trial and Appeal Board (PTAB) has made a few headlines this past week. Michael Loney, who is based in New York, took note of some precedential decisions:

The PTAB has de-designated Idle Free and Master Image in response to Aqua Products. Fiscal year 2018's first half set a motion to amend record for two consecutive quarters

The Patent Trial and Appeal Board (PTAB) has de-designated as precedential MasterImage 3D v RealD, Case IPR2015-00040 (PTAB July 15, 2015) (Paper 42) and has de-designated as informative Idle Free Sys v Bergstrom, Case IPR2012-00027 (June 11, 2013) (Paper 26).


Much of the coverage about PTAB, however, has been hostile. As expected, it came from longtime PTAB bashers and anti-PTAB sites. Those sites have a proven disdain for patent quality. Rather than ignore those sites we'd like to quickly respond to these.

Referring to a case from the first of June, Watchtroll now cherry-picks one of those rare cases where the Federal Circuit either overrules or vacates/remands after PTAB declares some patent/s to be invalid. Deception by omission in the patent trolls' lobby? Well, this was done again yesterday. Watchtroll himself (Quinn) said: "The Office taking a proactive approach to reviewing cases on appeal to the Federal Circuit is good news for applicants facing Alice based 101 rejections. Obviously, now is not the time to allow those cases to go abandoned if they remain commercially relevant."

"Watchtroll's goal has always been to 'scandalise' the PTAB, trying to make it seems like it is making errors (in judgment) all the time when in fact it is getting things right -- as measured by affirmations higher up -- almost all the time."Writing about patents in an entirely different domain, Watchtroll found an example of a patent's validity being upheld, but readers must bear in mind that all the above are the exceptions rather than the norm. Watchtroll's goal has always been to 'scandalise' the PTAB, trying to make it seems like it is making errors (in judgment) all the time when in fact it is getting things right -- as measured by affirmations higher up -- almost all the time. It's not just Watchtroll by the way but also sites that have sunk to similarly low levels (a climate of jurist bashing and vicious personal attacks), even Patently-O. Some hours ago Watchtroll celebrated the lobbyist in chief, Makan Delrahim.

Writing about Andrew Hirshfeld, who nearly became a Director of the USPTO (based on rumours at one time), Stephen C. Glazier (Partner at Akerman LLP) relayed this "webinar" nonsense, organised by patent maximalists to better suit their agenda. Glazier uses Patently-O as his platform and speaks of "Increasing Certainty in US Patent Law," which should not be a problem at all. If one cares about certainty, then one should instruct examiners to stop granting abstract patents altogether. Here's what Hirshfeld is said to have said:

On April 26, 2018 the U.S. Patent Commissioner, Andrew Hirshfeld, spoke at our webinar regarding current developments at the U.S. Patent Office. [Link Below]

A major theme of Commissioner Hirshfeld’s remarks was the PTO’s revived focus on increasing reliability, certainty, and enforceability of issued patents and the application process. The underlying goal here is to further increase the value of patents and their beneficial impact on innovative products and businesses.

The Commissioner stated that a first step toward this policy goal will be pursued by new PTO guidance to Examiners and the applicants regarding the application of the Alice-Mayo test for patent subject matter eligibility under Section 101. Other possible PTO guidance is also being considered on various current issues.


Anticipat, which is trying to make money out of PTAB bashing, has stepped in to also mention "predictability". "The recent memos offer some hope that USPTO will continue to improve the predictability of applying Section 101 rejections," it said. How about just actually applying Section 101 consistently at examination time?

"...to improve the certainty/confidence (or "predictability") of patents simply stop granting patents in defiance of Alice/Section 101."The reason PTAB so often invalidates patents is simple; examiners grant patents that they should not be granting. It's easier for these people to simply attack PTAB itself, not examiners who grant in a rush. Watchtroll himself (Quinn) is back to PTAB bashing ("Structural Bias at the PTAB: No Dissent Desired"). Been a while since the last time? These patent extremists have been reduced to tribunal bashing, judge bashing, and conspiracy theories (especially about Google).

The anti-PTAB (i.e. anti-patent quality) site Anticipat continues to stalk individual USPTO examiners, pretty much with the intention of maligning good ones (strict, thorough examination). To quote:

The USPTO has a vested interest in knowing how well its patent examiners examine applications. It tracks production, efficiency and quality. Even though quality examination has always been tricky to measure, one metric comes pretty close: an examiner’s appeal track record. And while tech center directors have had access to this data, until recently this has been difficult to access. Here we explore the known gaps of how this metric is being used at the USPTO.

According to sources at the USPTO, directors–who oversee each technology center–have access to their Examiners’ appeal track records. The more an Examiner gets affirmed by the PTAB on appeal, the more reasonable the Examiner’s rejections, the theory goes. This means that directors can evaluate examiners based on how often an examiner gets affirmed.


Let's just say it again: to improve the certainty/confidence (or "predictability") of patents simply stop granting patents in defiance of Alice/Section 101. That oughtn't be so hard, right?

Recent Techrights' Posts

Gemini Links 09/03/2025: Lagrange 1.18.5 and Writing Mannerisms
Links for the day
Links 08/03/2025: International Women's Day, Software Patents Being Squashed
Links for the day
Hiding Problems Doesn't Work
transparent organisations will be more stable and sustainable
Under the Pen Name "John O'Donnell" (LLM Slop, Not Real Article or Author) LinuxLinks Pushes Spammy Page
it happened some hours ago.
 
[Video] Richard Stallman on Understanding the Misconception of So-called 'Artificial Intelligence'
to "know and understand"
FSF's Defective by Design (DBD): Amazon Tightens the Digital Handcuffs
Reproduced verbatim
The Fall of the Open Source Initiative (OSI): Plenty of Issues, Plenty of Censorship
The OSI is abusive on many levels!
EPO Staff Appraisals Apparently Benefit Kakistocracy, Including Cheaters Who Grant Illegal Patents and Punish Good Patent Examiners (Who Find Valid Reasons for Denials)
In prior reports the staff representatives said that rewards typically went to people who granted many patents, i.e. didn't do proper examination and instead just allowed many fake patents get enshrined as EPs, causing fiasco (from which some patent attorneys could profit)
As The Web Gets Drowned Out, Sinking in a Pool of LLM Slop, Real News Sites With Real News Become Increasingly Rare If Not Extinct
This is a real problem
Links 09/03/2025: Moderna Patents Thrown Out, Climate United Sues E.P.A.
Links for the day
Links 09/03/2025: FiveThirtyEight Killed by Disney, Nature (Journal) Chooses Suicide by Slop
Links for the day
The Harder They Try to Censor, the Bigger the Scandal (and the Impact) Will Be
We don't plan to self-censor our coverage; sometimes we just delay publication a little
Gemini Links 09/03/2025: Leasehold Derangement Syndrome, Raspberry Pi, and More
Links for the day
All-Time Low for Microsoft in Africa
it helps show how irrelevant Microsoft is becoming
French woman (frontaliere) trafficked to promote unauthorised cross border Swiss insurance
Reprinted with permission from Daniel Pocock
New York Times & Guardian reporting on Modern Slavery Act prosecution of Glodi Wabelua
Reprinted with permission from Daniel Pocock
Diana & Adrian von Bidder-Senn, EVP, Palm Sunday & Debian death on wedding day
Reprinted with permission from Daniel Pocock
The RTO (Return-to-office) Layoffs or 'Soft' Layoffs at IBM and Red Hat
There are certainly many layoffs going on there, but many are described as "resignations" or "retirements" after RTO or some other form of relocation
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 08, 2025
IRC logs for Saturday, March 08, 2025
Graveyard of Mastodons: A Vast Number of Inactive Accounts
More than 80% of users in mastodon.social (the "big one") are no longer active
Gemini Links 08/03/2025: Reading Cory Doctorow's 'Little Brother', Abandoning GAFAM Forever
Links for the day
No, We Don't Want to Go "Viral" (and You Probably Don't, Either)
"Viral" junk gets forgotten quickly
Windows is Being Eradicated
On the Web, in Africa in particular, user strings or UAs that say "Windows" are becoming more rare
For International Women's Rights Day (Today) Staff Representatives at the European Patent Office (EPO) Opened Up on Gender Discrimination at the Office
Office discrimination against women is widely known; unless you sleep with men in management
Links 08/03/2025: Tariff Self Harm and Mostly Solved Diseases Making a Comeback
Links for the day
Links 08/03/2025: Climate Change Causing Food Shortages, Selling Off Chrome Still in the Cards
Links for the day
Gemini Links 08/03/2025: Driving in Japan, GrapheneOS, Tariffs Silver Lining
Links for the day
Working Like a Pack of Hyenas, the Microsofters Try Hard to Hide the Truth and Actively Censor Critics
They even target women
The Fall of the Open Source Initiative (OSI): Bylaws of the OSI a Shocking Oversight
That's what the OSI is right now: a salesperson
Thinking About Abandoning 'Google News' Altogether Due to Easy Poisoning by LLM Slop
As long as Google News keeps sending traffic to these leeches, it'll be very hard to justify relying on Google News for anything at all
Links 08/03/2025: Microsoft Failures, Further Attacks on Speech in Hong Kong
Links for the day
Gemini Links 08/03/2025: Physical Albums, Analog Computing, Deleting All Social Control Media
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 07, 2025
IRC logs for Friday, March 07, 2025
OpenAI, Deep in Debt With Growing Losses, Sees Web Traffic Falling Fourfold in a Year
Microsoft's shares have fallen over 10% since the last report and OpenAI is trying to con people via Wall Street, offloading the debt to some gullible fools
Microsoft's Social Control Media Efforts Cratering (GitHub and LinkedIn)
Expect more layoffs
Microsoft Office is a Dying Cash Cow and Now It's Just Dying/Starving
Most people use Android and they don't need some bloated office suite because many processes involve Web forms
Links 07/03/2025: Radio’s Death Knells and US Abandoning Ukraine
Links for the day
Gemini Links 07/03/2025: Replacing Firefox with LibreWolf, Visiting Churches
Links for the day
Links 07/03/2025: Oracle Layoffs, HPE Eliminates 3,000 Jobs, Massive Price Hikes at Microsoft, More Surveillance in Microsoft's Stuff
Links for the day
Manslaughter: Haverfordwest convictions, Abraham Raji & Debian DebConf drowning
Reprinted with permission from Daniel Pocock
Open Source Initiative's (OSI) Latest IRS Files: Only 2.9% (2.90046827447%) of Its Income is From Members
So almost all the money is corporate
Open Source Initiative (OSI) Reported to the California Privacy Protection Agency (Formal Complaint)
Time will tell if a Cheeto-controlled California will take this seriously or just brush it aside like a head of state from Ukraine
Half a Decade Without Social Control Media
Not all audience is desirable
IBM Laid Off Almost 2,000 Staff Last Friday and No Western Publication (Newspaper, Web Site) Even Mentioned That
Only some Asian sites mentioned it
Under IBM, After Killing OpenSource.com, the Next Casualty May be "Community Blog" of the Fedora Project
It sounds like they already made the decision/s
Social Control Media as a Rapid Race to the Bottom - Part IV - Physical Health, Mental Health, and Debilitating Anxiety
One is better off feeding stray pigeons (rather than scrolling and clicking on "timelines" like a dumb pigeon)
Links 07/03/2025: WSL Breakage (as Usual), Abandoning WordPress for Hugo
Links for the day
LLM Slop Versus Richard Stallman
"Compilation Of Corruption: Jeffrey Epstein And The Halls Of Academia"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 06, 2025
IRC logs for Thursday, March 06, 2025